R. v. K.O., 2012 NLCA 55

Date: 20120824 Docket: 11/80 Citation: R. v. K.O. , 2012 NLCA 55

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : K.O. (A YOUNG PERSON) RESPONDENT Coram: Wells, White and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Judicial Centre at Corner Brook Appeal Heard: June 7, 2012 Judgment Rendered: August 24, 2012 Reasons for Judgment by Wells J.A. Concurred in by: White and Harrington JJ. A. Counsel for the Appellant: Elaine Reid

Counsel for the Respondent: Nicholas J. G. Avis Q.C. Wells J. A.: [ 1 ] K.O. was charged with sexual assault, contrary to subsection 271(1) of the Criminal Code and with threatening to cause bodily harm to another person while committing a sexual assault, contrary to paragraph (

b) of subsection 272(1) of the Criminal Code . K. O. pleaded not guilty. The only viva voce evidence given at trial was that given by M.P., the complainant. The statement she gave to the police was also admitted in evidence. The statement given to the police by A.P., M.P.’s younger brother, was, upon his being called by the defence, admitted at trial.

He affirmed that it was true, but he was neither examined nor cross-examined as to its contents. [ 2 ] The youth justice court judge concluded that the Crown had proven the offence of sexual assault but had failed to prove the offence of threatening to cause bodily injury to another person while committing a sexual assault. Accordingly, he convicted K.O. of the charge under

section 271 but acquitted him of the charge under

section 272. In a separate sentencing decision, after receiving a pre- sentence report, a forensic psychological assessment, and a victim impact statement, the youth justice court judge decided that: … a period of two years probation is an appropriate sentence because of the seriousness of the offence committed by K.O. and his need for ongoing intervention over a considerable period of time. [ 3 ] The Crown seeks leave, and if granted, appeals the sentence. Counsel for K.O. acknowledged that leave should be granted. The Court agreed and leave to appeal was granted.

FACTS [ 4 ] At the time of the incident K.O. was 15 years old, M.P. was 12 years old, and A.P. was nine years old. The youth justice court judge identified the facts relevant to sentencing, by summarizing the evidence given and the conclusions he drew at the trial. In his sentencing decision he wrote the following: In my reasons for conviction (see [2011] N.J. No. 196 (P.C.) ), I reached the following conclusions: The evidence presented at the trial establishes that KO and MP live in the same community and have known each other for a considerable period of time.

I am satisfied that in July of 2010, KO called MP on the telephone and invited her to come over to his house. I am satisfied that she and AP [MP’s brother] went to KO’s residence. I am satisfied that neither of KO’s parents was home. MP testified that she, AP and KO were watching television in the living room of KO’s residence. She indicated that KO told AP to go down to the basement and that AP did so. As we have seen, AP described being chased out of the house by KO. Mr. Goudie took the position that AP provided false evidence to bolster MP’s credibility, but there is no evidence to support this proposition.

AP is ten years of age. Though he provided a statement to the police, he did not testify in the clear and direct fashion that MP did. In any event, his contradiction of MP’s evidence on this point is a minor one. It does not cause me concern as regards MP’s veracity. MP testified that after AP left the living room, KO kissed her on her cheek and neck. She indicated that she told him to stop and that he did. MP testified that KO then said that he had a new model car he wanted to show her and that it was in his bedroom. I accept this evidence as accurate.

I conclude that KO was sexually attracted to MP and purposely invited her to his residence while his parents were not home. He knew after kissing her that she was not consenting to any sexual contact but he persisted and lured her into his bedroom by referring to something he would have known she was interested in, i.e., a model car. MP testified that she and KO went upstairs to his bedroom. However, in a statement she provided to the police, MP referred to AP having gone upstairs with her and KO. As pointed out earlier, AP in his statement to the police referred to being chased out of the residence by KO.

MP also indicated in the statement she provided to the police that KO told AP to leave his bedroom and that AP did so. During cross-examination, she indicated that she was “confused” and indicated that AP did not go to the bedroom with her and KO. It is not possible from the evidence presented to determine if AP went upstairs when MP and KO did so. There is an obvious inconsistency between MP’s evidence and what she described to the police. However, in the context of this case, this is a minor inconsistency as it does not relate to what occurred in the bedroom, which is the essence of this matter.

From the evidence presented it is impossible to determine where AP was at certain times or when he left KO’s residence. However, this issue is not significant in determining what occurred in KO’s bedroom when KO and MP were there alone. MP initially testified that KO “pushed” her down on to the bed. However, in cross-examination, MP testified that she lay down on the bed because KO “said something” to her. In re-direct examination, she indicated that she could “not remember” how she came to be lying on the bed.

I am not satisfied that the Crown has proven that KO pushed MP onto the bed or used any force to cause her to lie on his bed. I am satisfied, however, that she did lay on KO’s bed. I am also satisfied that MP did not consent to having any sexual contact with KO. MP testified that KO lay on top of her, pulled down her pants and panties and inserted his penis into her vagina.

She testified that she attempted to push KO’s penis out of her vagina and that KO said “stop or I’ll hurt your little brother.” However, in the statement she provided to the police, MP said that KO threatened to kill AP before he placed his penis into her vagina and in cross-examination she indicated that KO threatened to kill AP after she pushed him off of her. Based on this evidence, I am satisfied that KO threatened to harm AP, but it is not possible to determine when he said this.

I am not satisfied that the Crown has proven that KO threatened to cause bodily harm to AP while committing a sexual assault upon MP. However, I am satisfied that KO had sexual intercourse with MP without her consent. The evidence presented establishes beyond a reasonable doubt that KO had sexual intercourse with MP and that MP did not consent to the act of sexual intercourse occurring. I am satisfied that KO knew that MP was not consenting. [ 5 ] The youth justice court judge also referred to the victim impact statement which he quoted as follows:

My name is MP. I am 13 years old now. But I was 12 when it happened to me. I lost all my friends, they called me names. I have trouble sleeping. Would not go outdoors without my little brother. I even got an attitude. Asked my dad to quit his job and move away. Now summer is here I stay at home a lot. [ 6 ] The pre-sentence report was quite thorough and so was the forensic psychological assessment.

The author of the pre-sentence report commented extensively on K.O.’s family and home situation, noting that he spends such time as he chooses between the home of his mother and step-father and the home of his father and step-mother, with significant resultant inconsistency in disciplinary matters. The report also comments on K.O.’s academic circumstances and his behaviour at school.

That behaviour resulted in “numerous interventions” and a school requirement for a psychiatric assessment before permitting his return to school. [ 7 ] The forensic psychological assessment covers family, social, behavioural and academic issues in a manner substantially similar to the manner in which those issues were treated by the author of the pre-sentence report.

The psychological assessment notes K.O. is “attaining in the borderline and extremely low ranges academically” and testing in 2008 resulted in K.O. “attaining a Full scale I.Q. of 60 … which indicates that K.O. is also in the borderline to extreme low range intellectually.” [ 8 ] In fact, a forensic psychiatric evaluation prepared by Qamar Abbasi, M.D., Ph.D., that is part of the record but was not specifically mentioned by the youth justice court judge in his reasons, indicates K.O.’s low I.Q. of 60 reflects “Mild Mental Retardation”. The report refers to other factors that support that conclusion. Dr.

Abbasi also indicates that he fully concurs with the “Forensic Psychological Assessment”. [ 9 ] The author of the forensic psychological assessment also noted that K.O. was not without personal strengths. The author wrote: The writer noted a number of personal strengths presented by K. in the assessment process. Of upmost importance was K.’s social morale regarding certain topics such as lying, stealing and manipulation. This presentation was consistent throughout all of the assessments administered and concurred with information attained in the clinical interview.

K. also presented with sincere concern towards other people… What he did present with in this processing was shame and guilt, indicating that although he may not fully understand the other child’s perspective, he does in fact experience remorse for causing others discomfort or harm. K. also spoke positively about a number of peers in his world, including girls. When asked about a past relationship, K. presented with kindness and respect even though the relationship has ended for quite some time… K. was also exceptionally respectful to the writer, even during times that were challenging for him.

He also requested to return for the final day of assessment although the writer relayed that there was enough information collected during the previous days to complete the report. This request occurred following an exploration of the loss of his cousin and his emotional expression regarding the loss at this time.

This was an indication that K. is not only open to counselling, but motivated to partake in his process for change. [ 10 ] Consideration of the more significant conclusions expressed in those two reports is important to determination of whether the youth justice court judge erred in the sentence he imposed on K.O.

The author of the pre-sentence report summarized her conclusions as follows: … his offense is serious in nature and K. has not shown any insight and continues to deny it ever happened. … … He has advised he wants to finish high school but does not want to do it on the school’s terms… … It would seem one of K.’s main issues is failing to take responsibility for his actions. He does not seem to grasp how his behavior affects the situation he is in nor does he appear to care by stating he would repeat the same behavior.

Although this is his first offence K. is convicted of a serious offence and he needs to be held accountable for his actions and at this time supervised probation may not be suitable for K O. [ 11 ] The recommendations of the author of the psychological assessment include, amongst others, the following: ● K. would benefit from an environment that would optimize on the understanding of consequences while also receiving social skill development support using behavioral interventions which are appropriate for his cognitive functioning. ● Support from CYFS to provide housing and additional support if his sentence term ends prior to the completion of the school year to ensure continuity of educational services depending on the community he will be living in when commencing the next academic year. ● K.’s mother and father receive mediation services to solidify a healthy co-parenting plan for the duration of K.’s adolescence.

This mediation should also include an agreement regarding ways in which to address parenting disagreements pertaining to K.’s well- being. ● Both sets of parents partake in parenting enhancement counselling to support their current parenting strategies with K., particularly in light of the current assessment findings. SENTENCING DECISION

[ 12 ] At the sentencing hearing, the Crown sought a period of nine to eighteen months secure custody and supervision. Defence counsel submitted that a non-custodial sentence would be a reasonable alternative in the case. [ 13 ] The youth justice court judge reviewed the principles of sentencing expressed in

section 38 of the Youth Criminal Justice Act , S.C. 2002, c.1 (“ YCJA ”) which he quoted and which reads as follows: 38 .

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons with particular attention to the circumstances of aboriginal young person; and (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community .

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 14 ] He considered relevant jurisprudence, in particular R. v. C.D.; R. v. C.D.K., 2005 SCC 78 , [2005] 3 S.C.R. 668. Quoting from paragraph 34, he noted the observation of the Court that while the YCJA “may be generally concerned with the protection of the public, it also has some specific goals, including restricting the use of custody for young offenders”.

He also noted the Supreme Court’s observation in that decision that the intention of Parliament in enacting the YCJA was “to reduce over-reliance on custodial sentences for young offenders”. [ 15 ] The youth justice court judge then posed a question as to when a court has jurisdiction to impose a custodial sentence. In the course of answering, he quoted sub- section 39(1) of the YCJA , which reads as follows: 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless (

a) the young person has committed a violent offence; (

b) the young person has failed to comply with non-custodial sentences; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985; or (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. He concluded that only paragraphs (a) (violent offence) or (d) (exceptional case) were potentially applicable. [ 16 ] He proceeded to consider what was meant by “violent offence” in paragraph (

a) and by “exceptional cases” in paragraph (d). With respect to the term “violent offence” he referred again to C.D. and quoted from paragraph 87 the following:

...for purposes of s. 39(1) (

a) of the YCJA , the term “violent offence” must be defined as an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm. With respect to “exceptional cases”, the youth justice court judge considered R. v. N.R. , 2005 NLCA 43 , 248 Nfld. & P.E.I.R. 146, and an earlier decision the youth justice court judge himself had written in R. v. J.B. , [2008] N.J. No. 326 (PC) . In addition to other excerpts from paragraph 59 of his decision in R. v. J.B. , he quoted: 3. [A]fter considering the circumstances of the offence(s), the Court must conclude that a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38 of the YCJA . This requires the Court to conclude that the circumstances of the offence(

s) are so aggravating that a non-custodial sentence would be unreasonable regardless of the young person’s personal circumstances and despite the YCJA’s preference for non-custodial sentences. Under this portion of the analysis, the aggravating circumstances involved become extremely important. Certain offences will be so aggravating that the personal circumstances of the young offender, though relevant, will be of minor significance. [ 17 ] Without further explanation at that point in his reasons, as to the basis for his conclusion, the youth justice court judge then wrote: 24.

As will be seen, it is not necessary in this case to determine if the offence committed by KO fits within the parameters of either section 39(1) (

a) or (

d) of the YCJA . 25. If it is concluded that the offence committed by the young person fits within one of the categories listed in section 39(1) this does not mean that a period of custody automatically follows.

Reference must be made to sections 39(2) to (5) of the YCJA . [ 18 ] Although he did not specifically state that he was doing so, it is obvious from his reasons that he concluded that, in the circumstances, he had jurisdiction to impose a custodial sentence because he next posed the question “what are the principles to be applied in determining if a period of custody should be imposed [emphasis added]?” In the course of answering that question, the youth justice court judge quoted subsections (2) to (5) of

section 39 of the YCJA which read as follows: 39 . (1) …

(2) If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38 .

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

(4) The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court from imposing the same or any other non-custodial sentence for another offence.

(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures. [ 19 ] The youth justice court judge rejected a custodial sentence and decided that a period of 2 years probation was the appropriate sentence, “because of the seriousness of the offence committed by K.O. and his need for ongoing intervention over a considerable period of time”. His only explanation for doing so is expressed as follows: 27. The offence committed by KO in this case must be regarded as an extremely serious one.

It involved sexual intercourse accompanied by force and threats. However, KO has no previous convictions and is motivated to seek counselling. He has a multitude of difficulties which require significant and long term intervention. I conclude that a non-custodial sentence, while lenient, is the form of sentence which is most likely to promote KO ’s long term rehabilitation.

I conclude that the principles of sentencing set out in the YCJA , particularly the requirement for resort to non-custodial sentences when reasonable and the requirement for emphasis to be placed upon rehabilitation, strongly supports the imposition of a non-custodial sentence in this case. [ 20 ] As a result, the youth justice court judge imposed the period of two years probation and set the conditions of the probation order. He also issued a DNA sample order and imposed a firearms prohibition order. From that decision the Crown appeals. APPEAL (

a) Argument of Parties (

i) Of the Crown [ 21 ] At the hearing of the appeal, Crown counsel indicated that its argument was two fold. First, that the youth justice court judge

erred in law by incorrectly interpreting sections 38 and 39 . Second, that the youth justice court judge erred by failing, for a variety of reasons, to impose a fit sentence. [ 22 ] The Crown makes a somewhat confusing argument respecting

interpretation of sections 38 and 39. Counsel asserts that it is necessary for a youth justice court judge to make what she describes as a “double

section 38 analysis”. She submits that where the prosecutor seeks a custodial disposition a youth justice court judge must first employ the principles in

section 38 to decide whether custody is a sentence that “statutorily” can be considered. Once it is decided that a custodial disposition is possible then an analysis under subsection (1) of

section 39 must, she asserts, be done to determine under which of the four categories the offence fits. Crown counsel argues that “when you are in this category of offence” the youth justice court judge is obliged to apply

section 39 before deciding not to impose a custodial sentence. Then, Crown counsel submits, subsection (2) of

section 39 requires the youth justice court judge to apply a second

section 38 analysis to determine whether there is a reasonable alternative or whether a custodial sentence should be imposed. She submits that the youth justice court judge, here, erred by deciding, as set out in paragraph 17 above, that “it is not necessary in this case to determine if the offence committed by K.O. fits within the parameters of either section 39(1) (

a) or (

d) of the YCJA ”. [ 23 ] With respect to its fitness of sentence argument, the Crown argues that had the statutorily required approach been taken a custodial sentence ought to have been imposed under either paragraph (

a) or paragraph (

d) of subsection 39(1) . In terms of paragraph (a), the Crown acknowledges that the youth justice court judge did not say that he found the sexual assault to be a violent offence but notes that he did write that “it must be regarded as an extremely serious one” involving “sexual intercourse accompanied by force and threats”.

The youth justice court judge erred, the Crown submits, when, following that assessment of K.O.’s actions, he concluded that “a non-custodial sentence, while lenient, is the form of sentence most likely to promote K.O.’s long term rehabilitation”. [ 24 ] The Crown also submits that “it was incumbent on the [youth justice court judge] to impose a custodial disposition” on the basis that “the circumstances of this offence make it an exceptional [case]” in terms of paragraph (

d) of subsection 39(1) . The Crown cites R. v. C.(J.E.) , 2004 BCSC 1341 , 2004 Carswell BC 2493, to supports its proposition that “the circumstances of the offence are so aggravating that they outweigh what otherwise would be relevant considerations”. The Crown describes the “aggravating” circumstances of the offence to be: … The breach of MP’s physical integrity, privacy and human dignity was substantial.

This is evident from the nature of the offence – which was full vaginal penetration – and the words of MP’s victim impact statement – which describes the horrible effects, particularly for a 13 year old child, of losing friends; being called names; having trouble sleeping; not going outside; and wanting to move away.

The seriousness of the crime here is aggravated by the young age of the victim; the previous rejected advances and KO’s persistence; the lure to the bedroom; and the threat, at some point in the course of the encounter, to harm AP. … [ 25 ] In addition, the Crown argues that the youth justice court judge, here, overemphasized rehabilitation and a comment in the forensic psychological report that K.O. was motivated to be counseled.

She also argues that the youth justice court judge failed to consider, as relevant factors, comments in the pre-sentence report to the effect that: - K.O. is convicted of “a serious offence and he needs to be held accountable for his actions and at this time supervised probation may not be suitable …” - K.O. has not shown any insight and continues to deny it ever happened. - K.O. “does not seem to grasp how his behaviour affects the situation he is in nor does he appear to care by stating that he would repeat the same behaviour”. [ 26 ] The Crown’s factum summarizes its position by stating: 47.

We submit that custody was an available sanction for the violent offence committed, and that if properly considering all the factors and principles of sentencing set out in the YCJA , that there is no reasonable alternative to custody. That said, we submit that the sentencing judge by imposing a sentence of probation imposed a sentence which was not fit in all the circumstances. (ii) Argument of K.O. [ 27 ] Counsel for K.O. submits that the youth justice court judge was correct in his

interpretation of sections 38 and 39 and that he did not need to determine if either paragraph (

a) or paragraph (

d) of subsection 39(1) “were applicable in the circumstances of this case”. The position of K.O. as to the first argument of the Crown is summarized in his factum by asserting that the youth justice court judge was correct when he decided: … there was no need to determine whether or not this offence came within the parameters of 39(1)(

a) or (

d) but instead chose to consider the sentencing principles of the YCJA and found that even if those 2 subsections applied, this was not a case in which any form of custody was appropriate. [ 28 ] With respect to the fitness of sentence, counsel for K.O. agrees that sexual assault is a violent offence. However, he submits that, while it may not be intended, the net effect of the Crown’s position would make a custodial sentence mandatory for sexual assault. This, counsel submits, is inconsistent with the statute.

Counsel also submits that the youth justice court judge took into account the circumstances of the offence and the circumstances of the offender, weighed the pre-sentence report and the forensic psychological report, and “in keeping with the principles of the YCJA , concluded that [K.O.’s] rehabilitation was the foremost consideration in this case”. Counsel acknowledges that the disposition may be lenient but asserts that “it is an appropriate one in this case”.

In summarizing, as to the Crown’s second argument, K.O., in his factum, asserts that: … the Trial Judge committed no errors in law or principle; nor did he fail to consider any relevant factors or overemphasize appropriate factors; nor did he impose a demonstrably unfit sentence.

(

b) Issues [29] In its factum, the Crown identified the issues somewhat differently than it had in its notice of appeal. From its factum and itsargument at the hearing of the appeal, the following issues arise: 1. Did the youth justice court judge err in law by misinterpreting sections 38 and 39 of the YCJA when he decided that it was notnecessary for him to determine whether the offence of which K.O. was convicted fits within either paragraphs (

a) or (

d) of subsection39(1)? 2. Did the youth justice court judge err by imposing an unfit sentence as a result of failing to conclude that the offence was either a“violent offence” for which there is no reasonable alternative to custody in the circumstances or an “exceptional case” as defined insubsection 39(1), or by overemphasizing rehabilitation and failing to give sufficient weight to meaningful consequences andproportionality, or by failing to consider relevant aspects of the pre-sentence report and the forensic psychological report?

Counsel for both parties presented their arguments in the context of those two issues. THE LAW [30] Before analyzing the specific issues it will be beneficial to call to mind the object and purpose of the YCJA and any generalprinciples that should be employed in the course of interpreting the provisions in dispute in this case.

Section 3 of the YCJA is identifiedas a “Declaration of Principle”, which principles are expressed in the four separate paragraphs of subsection (1). The first of thoseparagraphs sets out the objectives that Parliament intends the youth criminal justice system to achieve. It reads: (

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; [31] It is also noteworthy that the second paragraph contains an express statement as to Parliament’s intention to create the youthcriminal justice system as a separate system from that applicable to adults.

The adult sentencing regime of the Criminal Codespecifically provides for achieving deterrence, specific and general. The youth criminal justice system does not. (See R. v. B.W.P.; R. v.B.V.N., 2006 SCC 27 , [2006] 1 S.C.R. 941 at paras. 39 to 41).

Clearly, in respect of youth criminal activity, the objectives ofParliament are to prevent youth crime by addressing the underlying circumstances leading to the offending behaviour of a youth insteadof by imposition of penalties to achieve general or specific deterrence, and to promote rehabilitation of youthful offenders, while ensuringmeaningful consequences for the offending behaviour.

An assessment of the entire statute will demonstrate that “meaningfulconsequences” are intended to be achieved by other than a custodial sentence. [32] Fortunately, an assessment of the statute, and its clearly stated objectives, was done by the Supreme Court of Canada in R. v.C.D., supra. It will, therefore, be sufficient to simply refer to the conclusions reached by the Court in that case. There, the Courtconsidered the manner in which the phrase “violent offence” in paragraph (

a) of subsection 39(1) should be construed. Whileconstruction of that phrase is not the single issue in this case, the application of

section 39 as a whole is. As a result, the conclusions asto general principles reached by the Court in C.D. are applicable here. Bastarache J. wrote for eight of the members of the Court. Theother member, LeBel J., agreed with his disposition but would have construed “violent offence” in terms of the “fault of the offender”rather than the “harm-based” approach employed by Bastarache J.

LeBel J. expressed no disagreement with the views of Bastarache J. asto the object and purpose of the statute and the clear directions specified by Parliament. [33] As the youth justice court judge in this case noted, Bastarache J. wrote that “While the Act may be generally concerned with theprotection of the public, it also has some specific goals, including restricting the use of custody for young offenders.” The youth justicecourt judge did not, however, highlight the comments of Bastarache J. that immediately followed that statement.

Noting that theparticular goal of restricting custody for young offenders was also evidenced in the

preamble to the Act, Bastarache J. wrote: 35 Turning first to the

preamble, there are two parts that demonstrate that the Act is aimed at restricting the use of custody for youngpersons. First, there is the part of the

preamble that states that “Canada is a party to the United Nations Convention on the Rights of theChild and recognizes that young persons have rights and freedoms, including those stated in the Canadian Charter of Rights andFreedoms and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms”. This reference to the Conventionon the Rights of the Child, Can. T.S. 1992 No. 3, is important because art. 37(

b) of the Convention provides that: No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be inconformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; 36 The second part of the

preamble that demonstrates that the Act is aimed at restricting the use of custody for young offendersreads as follows: . . . WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests ofvictims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration,and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violentyoung persons. (Emphasis in original.)

[ 34 ] Bastarache J. then considered the principles that Parliament directed be applied in the course of youth sentencing. The general principles are expressed in

section 38, quoted in paragraph 13 above. With respect to those principles, Bastarache J. wrote: 37 Turning next to s. 38(2) of the YCJA , it sets out the principles that a youth justice court is to follow in determining a youth sentence. Two principles in particular reveal the Act’s focus on restricting the use of custody for young offenders. First, the sentencing principle set out in s. 38(2)(

d) provides that “all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons”. Second, the sentencing principle set out in s. 38(2)( e )(

i) provides that “the sentence must . . . be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1)”. [ 35 ] The conclusions to be drawn from the scheme of the Act were also commented upon by Bastarache J. With respect to

section 39 in particular, he wrote: 39 The goal of restricting the use of custody for young offenders is also reflected in the scheme of the Act, and, in particular, in s. 39 . For instance, as noted above, subs. (1) of this

section provides for only four “gateways” to custody. If an offence committed by a young person does not fit through one of these gateways, then a youth justice court cannot impose a period of custody. However, even if one of the gateways to custody in subs. (1) does apply, subs. (2) prohibits a youth justice court from imposing a custodial sentence under s. 42 (youth sentences) unless the court has determined that there is no reasonable alternative, or combination of alternatives, to custody that is in accordance with the purpose and principles set out in s. 38 .

Furthermore, subs. (3) sets out a number of factors that a court must consider in determining whether there is a reasonable alternative to custody, such as the alternatives to custody that are available and that have been used in respect of young persons for similar offences committed in similar circumstances, and subs. (9) requires a court that imposes a custodial sentence “[to] state the reasons why . . . a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1)”. 40 The remaining subsections of s. 39 also support the goal of restricting the use of custody for young offenders .

For instance, subs. (4) makes it clear that the previous imposition of a particular non-custodial sentence on a young person does not preclude a court from imposing the same or any other non-custodial sentence for another offence. Subsection (5) prohibits a court from using custody as a substitute for appropriate child protection, mental health or other social measures.

Subsections (6) and (7) require a court to consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel before imposing a custodial sentence unless the court, with the consent of the prosecutor and the young person or his or her counsel, determines that the report is not necessary.

Finally, subs. (8) prohibits a court that is determining the length of a sentence that includes a custodial portion from taking into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under s. 94. (Emphasis added.) [ 36 ] Bastarache J. also identified support for his conclusions, with respect to the intention of Parliament to reduce custodial disposition for young offenders, in the comments of the minister at the time that the legislation was considered by Parliament.

At paragraph 48 he wrote: … This conclusion is supported by comments made by the then Minister of Justice and Attorney General of Canada, Anne McLellan, when the YCJA was introduced for its second reading in Parliament. Specifically, the Minister stated that: As we also know, the existing YOA has resulted in the highest youth incarceration rate in the western world, including our neighbours to the south, the United States. Young persons in Canada often receive harsher custodial sentences than adults receive for the same type of offence. Almost 80% of custodial sentences are for non-violent offences.

Many non-violent first offenders found guilty of less serious offences such as minor theft are sentenced to custody. The proposed youth criminal justice act is intended to reduce the unacceptably high level of youth incarceration that has occurred under the Young Offenders Act. The

preamble to the new legislation states clearly that the youth justice system should reserve its most serious interventions for the most serious crimes and thereby reduce its over-reliance on incarceration. In contrast to the YOA, the new legislation provides that custody is to be reserved primarily for violent offenders and serious repeat offenders.

The new youth justice legislation recognizes that non-custodial sentences can often provide more meaningful consequences and be more effective in rehabilitating young persons. [Emphasis added.] ( House of Commons Debates , February 14, 2001, at p. 704) [ 37 ] The correctness, or otherwise, of the conclusions and decision of the youth justice court judge in this case, in his

interpretation and application of sections 38 and 39 of the YCJA , must be determined in the context of the foregoing comments of Bastarache J. ANALYSIS Issue 1: Did the youth justice court judge err in law by misinterpreting sections 38 and 39 of the YCJA when he decided that it was not necessary for him to determine whether the offence of which K.O. was convicted fits within either paragraphs (

a) or (

d) of subsection 39(1) ? [ 38 ] I cannot accept the Crown’s argument that it is necessary for a youth justice court judge to make “a double

section 38 analysis”, and by failing to do so the youth justice court judge here erred in law. I can find no indication in the statute itself nor have I been referred to any authorities which would indicate that such an analysis is required. The only thing to which Crown counsel could point was the reference in subsection 39(2) to a reasonable alternate sentence that “is in accordance with the purpose and principles set out in

section 38 ”. That reference is simply for identification of the principles to be applied and does not require the double analysis approach suggested by the Crown.

[ 39 ] In fact, the whole tenor of

section 39 is to preclude custodial sentences unless one of the specified circumstances exists and, even then, a custodial sentence is not to be employed “unless the court has considered all alternatives to custody … that are reasonable in the circumstances”. Thus,

section 39 only comes into play if, on consideration of the general principles expressed and referred to in

section 38, the youth justice court judge concludes that a custodial sentence should be considered in the circumstances. [ 40 ] From his comment that “only section 39(1) (

a) and (

d) are potentially applicable”, it is obvious that the youth justice court judge did consider the possibility of a custodial sentence. The Crown’s argument, that the youth justice court judge erred by deciding, prior to applying the principles set out in

section 39, that “it is not necessary in this case to determine whether the offence … fits within the parameters of either section 39(1) (

a) or (

d) of the YCJA ”, reflects a misreading of what the youth justice court judge wrote. The sentence expressing that impugned conclusion opens with the phrase, “As will be seen”. Clearly, the youth justice court judge was, at that stage, noting a conclusion that would be reached at a later point in his reasons. Immediately after noting that, the youth justice court judge proceeded to a consideration of, in his words, “the principles to be applied in determining if [emphasis added] a period of custody should be imposed”. He then identified and, presumably, took into consideration the remaining four subsections of

section 39 prior to expressing his conclusion that a non-custodial sentence was appropriate. [ 41 ] Obviously, the youth justice court judge was satisfied that application of the principles expressed and referred to in sections 38 and 39, in the context of the broader purpose of the YCJA , taking into account the comments of Bastarache J. in C.D. , to which case the youth justice court judge had referred, precluded a custodial sentence in light of the personal circumstances of K.O. and the facts of this case.

While he did not express that view specifically, I am satisfied that it is the only reasonable conclusion to draw from the comments that he did make. Those comments are set out in paragraph 19 above. That approach is not inconsistent with the provisions of the YCJA . Having reached that conclusion, consideration of whether the offence of which K.O. was convicted fell within either paragraph (

a) or paragraph (

d) of subsection 39(1) would have been a pointless exercise. [ 42 ] Subsection (1) does not require categorization of the offence under one of the four specified categories before rejecting a custodial option. Rather, it prohibits a custodial option unless the offence falls within one of those four categories. I can find no error in the youth justice court judge interpreting sections 38 and 39 in such a manner as to conclude that it was unnecessary for him to consider whether the offence fell within either paragraph (

a) or paragraph (

d) of subsection 39(1) . The appeal on that ground must be dismissed.

Issue 2: Did the youth justice court judge err by imposing an unfit sentence as a result of failing to conclude that the offence was either a “violent offence” for which there is no reasonable alternative to custody in the circumstances, or, because of aggravating circumstances, an “exceptional case” as defined in subsection 39(1) , or by overemphasizing rehabilitation and failing to give sufficient weight to meaningful consequences and proportionality, or by failing to consider aspects of the pre-sentence report and the forensic psychological report? [ 43 ] Counsel for K.O. acknowledges that any sexual intercourse without consent, by its nature, involves some degree of violence.

I would agree in the context of actual consent but where, as here, because of M.P.’s age she is legally incapable of consenting, violence cannot be presumed from that incapacity at law. Both its existence and its extent must be established by the evidence. [ 44 ] While there was no specific evidence of physical harm to the victim, the victim impact statement, set out in paragraph 5 above, provides evidence of psychological harm that could support a conclusion that the offence fell within the meaning of “violent offence” as that term is used in paragraph (

a) of subsection 39(1) . (See R. v. C.D. at paragraph 20 .) That does not mean, however, that a custodial sentence is warranted. Making that determination depends on all of the other relevant circumstances, as disclosed by the evidence. [ 45 ] The youth justice court judge wrote that the offence “involves sexual intercourse accompanied by force and threats”. However, he provided no explanation for his comment that the sexual intercourse was accompanied by force, or why nothing in the evidence warranted consideration of a custodial sentence as a result of that conclusion.

Nevertheless, an examination of the evidence demonstrates that his decision not to impose a custodial sentence was not an error in the circumstances of this case. [ 46 ] The only direct evidence at trial was the viva voce evidence of M.P. The only other evidence offered at trial were the statements given to the police by M.P. and by M.P.’s younger brother, A.P. That latter statement relates only to the manner in which K.O. caused him to leave the house.

While there is no evidence that would contradict M.P.’s evidence, the only part of her evidence respecting the actions of K.O. that is unambiguous and free of inconsistencies is her evidence that K.O. inserted his penis into her vagina. In his reasons for conviction, the youth justice court judge noted those inconsistencies and wrote: Some of the inconsistencies are of a minor nature. However, some of them are significant.

These contradictions do not cause me to doubt M.P.’s honesty, but they do cause me concern as regards portions of her description of what occurred. [ 47 ] In my view those inconsistencies were numerous and are significant in terms of the Crown’s argument that “the circumstances of the offence are so aggravating that they outweigh what otherwise would be relevant considerations” and, as a result, require the imposition of a custodial sentence.

The significance of those inconsistencies arises from the Criminal Code requirement that where there is a dispute, “the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact …” ( subsection 724(3) ).

As will be clear from the following paragraphs, the evidence of M.P. as to the attendant circumstances is so fraught with inconsistencies that it cannot be relied upon to provide proof, to the standard required by the Criminal Code , of the aggravating facts asserted by the Crown. [ 48 ] With respect to the question of violence, the first evidence of M.P. is that he told her to lie down on the bed and she lay down.

A few questions later she suggested she lay down on the bed because “he told me something” but she couldn’t remember what it was “because he was like mumbling it.” When she was later asked why she got on the bed she said “because he pushed me down on his bed”. On cross-examination, M.P. was asked to explain whether she lay down on the bed because he told her something or she was pushed down. She affirmed that she lay down on the bed because he told her something but emphasized that she didn’t remember it because he was mumbling.

She later said she lay down on the bed because she was pushed not because K.O. had mumbled something. Later, in cross-examination, she reaffirmed that he had asked her to lie down on the bed. She said she didn’t do so but that he then said “please lie on the bed”. She then said that he kept asking her. She continued with “and then he - - and then I - - I don’t remember, but

like it’s kind of blurry because it was like dark. I can’t remember like hardly anything.” She then affirmed that she couldn’t remember how she “ended up lying on the bed”. On re-examination she affirmed that she really couldn’t remember how she ended up lying on the bed. [ 49 ] I can find no reliable evidence indicating K.O. applied any force to M.P. In fact, the youth justice court judge, in his reasons for conviction wrote: “I am not satisfied that the Crown has proven that K.O. pushed M.P. onto the bed or used any force to cause her to lie on the bed”.

There is no evidence of force in any of the other attendant circumstances. Thus, it is difficult to reconcile that comment of the youth justice court judge in his conviction decision with the comment in his sentencing decision that the offence was accompanied by force. [ 50 ] There were numerous other inconsistencies in her evidence particularly in relation to where her young brother A.P. was at various times. Her evidence on that matter contained a variety of constantly changing assertions, none of which was consistent with A.P.’s statement to the police, that K.O. had chased him out of the house.

While, in this appeal, that evidence has no direct bearing on the actions for which K.O. was convicted, it does impact the level of credibility to be accorded to the evidence of M.P. as to attendant circumstances. Her evidence as to threats, which she said K.O. made in relation to hurting A.P., has a similar variety of inconsistencies. On that matter, there were also differences in the statement she gave to the police and the evidence she had given in court. [ 51 ] There is no direct evidence whatsoever of the application of physical force or confinement action by K.O.

The whole of M.P.’s evidence describing the attendant circumstances is so fraught with inconsistencies that it cannot be relied upon to establish, beyond a reasonable doubt, a level of violence that would warrant the imposition of a custodial sentence on a youthful first offender. Taking that into account, together with the fact that, at the time, both the offender and the victim were youths (K.O. was 15 and M.P. was 12), the Crown’s assertion that a custodial sentence was warranted because the offence could be considered a “violent offence” referred to in paragraph (

a) of subsection 39(1) must be rejected. [ 52 ] The Crown also submits, on the basis of its argument set out in detail in paragraph 24 above, that “it was an error in principle for [the youth justice court judge] to conclude that this was not an offence as described in s. 39(1) (d)”, i.e. an “exceptional case”, and submits that “the aggravating circumstances are such that the imposition of a non-custodial sentence would be inconsistent with the purposes and principles set out in

section 38 ”. This error, the Crown submits, led to the imposition of an unfit sentence. [ 53 ] To start with, I would note with respect to

section 39, as Bastarache J. noted at paragraph 39 of C.D. , that “even if one of the gateways to custody in subsection (1) does apply, subsection (2) prohibits a youth justice court from imposing a custodial sentence under s. 42 (youth sentences) unless the court has determined that there is no reasonable alternative or combination of alternatives to custody that is in accordance with the purpose and principles set out in

section 38 .” The prohibition is direct with respect to paragraphs (

a) to (

c) and indirect in respect of paragraph (

d) in the sense that, with respect to paragraph (d), the youth justice court judge is required to be satisfied that a non-custodial sentence would be inconsistent with the principles set out in

section 38 . Clearly, on that construction,

section 39 would not cause it to be “incumbent” on the youth justice court judge to impose a custodial sentence even if he had specifically found that the offence fell within either paragraph (

a) or paragraph (d). Having concluded that probation was an alternative appropriate to the circumstances, not only was it not incumbent on the youth justice court judge to impose a custodial sentence,

section 39 prohibited it. Thus, the Crown’s assertion that, as a result of these circumstances, the youth justice court judge ought to have concluded it was an “exceptional case” as contemplated by paragraph (

d) of subsection 39(1) and imposed a custodial sentence is not substantiated. [ 54 ] With respect to general consideration of “aggravating circumstances”, the evidence referred to in paragraphs 46 to 51 above discloses no such aggravating circumstances. There is nothing else in the whole of M.P.’s evidence that would establish aggravating facts on the standard required by the Criminal Code .

The evidence does not support the Crown’s characterization of K.O.’s actions as being “aggravated by the young age of the victim, the previous rejected advances and K.O.’s persistence; the lure to the bedroom, and the threat, at some point in the course of the encounter, to harm A.P.”. [ 55 ] With respect to the young age of the victim, the Crown bolsters its argument by referring to the impact of K.O.’s actions on “a child”. That comment is valid and important but, in terms of considering the sentence appropriate for K.O.’s offence, it cannot be considered without reference to K.O.’s characteristics.

He too was a child. K.O. was 15 at the time. He was reported to have a very low I.Q. and exhibited signs of “mild mental retardation”. M.P. was 12. In a sentencing context, the Court can take judicial notice of the well known and universally accepted fact that, generally, young boys mature at a later age than young girls. Thus, there may have been little disparity in maturity of the two youths.

Taking all that into account, it is difficult to treat M.P.’s age as an aggravating fact. [ 56 ] Those age considerations also bear on the Crown’s assertion that the “previous rejected advances and K.O.’s persistence” constitute an aggravating factor. For the reasons expressed in the preceding paragraph, that argument cannot be accepted in the absence of any evidence of physical force or confinement. [ 57 ] With respect to threats of harm to A.P., the evidence of M.P. has a similar variety of inconsistencies.

Those inconsistencies were not confined to the differences in times when M.P. alleges they were made, which caused the youth justice court judge to acquit K.O. on the second charge. That is clear from the excerpts from her evidence quoted in paragraph 48 above.

At times she was explicit as to the threat she attributes to K.O. but at one point she says she could not remember what he said because he was mumbling. [ 58 ] Although her evidence as to being lured to his bedroom by the promise of being shown a model car does not appear to have inherent inconsistencies, considered in the context of A.P. being excluded and K.O. placing a blanket over the window, that showing her a model car was a lure does stretch credulity somewhat.

Her evidence also indicates that she remained there, solely on the basis of agreeing to K.O.’s request to stay, after coming to the conclusion that she was so lured. That is clear from the following exchange: A. Like before we - - we went up there and I told him where was his car. He’s like hold on I got to put the blanket up to the window first. So I’m like okay. And then he said sit down on the bed. I’m like oh, and I said I didn’t want to sit, but he’s like sit and stay. And so I sat down on the bed and he’s like where’s - - I’m like where’s the car to. He’s like oh, I don’t have one. Q. Okay.

A. So it was like a lie for me to get up in the room. Q. Okay so, when you found out well there is no car, what did you do then? A. I wanted to go. Like I wanted to go downstairs, but he’s like no let’s stay upstairs for a couple of minutes. Q. Alright. So you stayed up because he wanted you to stay up? A.

Yes, but I wanted to go, but he said, no, stay, stay. [ 59 ] When all of the evidence is considered in the context of the information in the pre-sentence report and the forensic psychological report that K.O. has an I.Q. of 60, is “borderline to extremely low range intellectually,” and this reflects “mild mental retardation”, the Crown’s assertion that the youth justice court judge erred by failing to find that there are aggravating circumstances justifying the imposition of a custodial sentence must be rejected. [ 60 ] With respect to the youth justice court judge’s emphasis on rehabilitation of K.O., unlike a case of sentencing under the Criminal Code , this must be considered in the context of the different principles specified in the YCJA , and discussed in paragraphs 30 to 37 above.

In the YCJA , Parliament has mandated emphasis on rehabilitation and avoidance of custodial sentencing unless there is no reasonable alternative, essentially directing that it be used as a last resort. (See subsection (1) and (2) of

section 38 quoted in paragraph 13 above.) [ 61 ] While his comments could have been more extensive, and if they had been would have facilitated appellate review, considered in the context of the YCJA , nothing in the comments of the youth justice court judge would indicate an over-emphasis on rehabilitation. He noted the statutory requirement for “resort to non-custodial sentences when reasonable” and the statutory requirement for “emphasis to be placed upon rehabilitation”. Those two statutory requirements, he concluded, “strongly supports the imposition of a non-custodial sentence in this case”.

His failure to elaborate as to specifically how they affected this case makes appellate review somewhat more difficult but not impossible. [ 62 ] It is correct that the youth justice court judge did not specifically mention the observation in the pre-sentence report that “supervised probation may not be suitable for K.O.”. Clearly, however, he was aware of the views expressed in both the pre-sentence report and the forensic psychological report. His failure to specifically mention that particular observation does not mean he failed to consider it.

As well, it was an observation and not “the recommendation that supervised probation was not recommended”, as the Crown asserts. [ 63 ] I would also note that the forensic psychological report does not contain such an observation. Instead, the author of that report wrote: K. would benefit from an environment that would optimize on the understanding of consequences while also receiving social skill development support using behavioral interventions which are appropriate for his cognitive functioning. In my view, in a YCJA context, that sounds as much like supervised probation as a custodial sentence.

In any event, it was open to the youth justice court judge, on considering both observations, to exercise his discretion in favour of supervised probation rather than a custodial sentence. [ 64 ] A review of the evidence demonstrates that the conclusion reached by the youth justice court judge does not reflect error in his appreciation of the evidence or a failure to consider relevant factors identified by the pre-sentence report or the forensic psychological assessment.

In the circumstances, his conclusion that supervised probation was the remedy appropriate to meet the requirements of the YCJA has not been shown by the Crown to be an error resulting in an unfit sentence. CONCLUSION [ 65 ] For this Court to intervene and impose a custodial sentence, in the circumstances of this case, would, as counsel for K.O. asserts, be tantamount to making a custodial sentence mandatory for sexual assault in the case of a youthful first offender. Such a decision would be inconsistent with the clear direction expressed by Parliament in the YCJA .

For all the foregoing reasons, leave to appeal is granted, the appeal by the Crown is dismissed and the sentence imposed by the youth justice court judge is affirmed. C.K. Wells J.A. I concur:

C.W. White J.A. I concur: M.F. Harrington J.A.